Editor's Note: This story was updated January 14, 2022.
Companies with 100 or more employees will not be required to make workers choose between getting Covid vaccines or getting tested weekly, the U.S. Supreme Court ruled today.
The ruling halts enforcement of an emergency temporary standard issued November 5 by the U.S. Occupational Safety & Health Administration. That standard almost immediately resulted in lawsuits from businesses, political and trade groups, and states attorney general seeking to block its enforcement.
The standard was to have required workers at companies of 100 or more to get vaccinated or get weekly Covid tests, starting January 10. Those opting for testing would also be required to wear masks at work.
Opponents had won a near-immediate stay on enforcing the ruling. That lasted until December 20 when another federal appeals court lifted that stay, allowing the mandate to go into effect.
Today, a 6-3 majority of the Supreme Court overturned the Appeals Court’s latest stay of the rules for businesses. The court, however, ruled 5-4 that a similar vaccine mandate for health care workers could be enforced.
In a statement, Biden hailed the court for upholding the health care worker mandate, saying it would save lives and cover 10.4 million health care workers.
“At the same time, I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” his statement said.
“…As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.”
Various construction industry-related groups, including the Associated General Contractors, oppose the vaccine-or-test requirement for businesses. AGC said it would hurt construction companies by making it more difficult to retain workers as they would likely leave for smaller companies that were not required to institute the rule.
AGC noted that the court’s decision only upheld a previous stay of the business mandate, and the case would now return to the lower court to debate its merits. AGC vowed to continue fighting the OSHA standard in court.
The case returns to the 6th Circuit Appeals Court, which had previously said OSHA could enforce the rule and lifted the previous stay by the 5th Circuit Appeals Court.
On Thursday, a majority of Supreme Court justices said OSHA lacked the authority to enforce the standard. The majority opinion also stated that the plaintiffs in the case were likely to win.
“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the majority opinion states. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
The three dissenting justice said the court majority was being unwise in ruling on a matter in which it had no expertise in assessing the health risks.
“Today, we are not wise,” their opinion says. “In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed.”